Saturday, April 16, 2005

Sham filibuster argument

I was going to write about the ridiculous arguments we're hearing about filibusters, now that the issue is out front. That "progressive" groups like the NAACP and People For The American Way now favor the filibuster--traditionally the greatest anti-progressive tactic around--is hilariously hypocritical. And hearing Senate Democrats defend the filibuster as a building block of our democracy (a procedural rule that stymies the majority) and as needed for "unlimited debate" (filibusters prevent real debate) was even worse.

On the other side, a number of Republicans seem to only want to stop filibusters for the "untraditional" purpose of preventing votes on federal judges. There is a barely colorable Constitutional argument for this (rather than being the day-to-day legislative give and take that Congress was created for, naming judges is an executive power and the role of the Senate is "advice and consent," pretty clearly by majority, since treaties specifically require two-thirds). Still, the idea that the majority-thwarting procedural rule of the filibuster is bad for judges but okay, for historical reasons, for legislation, is appallingly weak.

But I don't need to write this article, since Jonathan Chait just wrote it for me in Friday's LA Times. Alas, after making sense through 80% of the editorial, he goes for the silliest argument of all, one I first heard when discussing a Hendrick Hertzberg piece in The New Yorker. Hertzberg actually claims because judges can thwart the will of the people and have life tenure, filibustering judges, as opposed to filibustering legislation, is okey-dokey. Astonishingly, Jonathan Chait takes this argument seriously, as does the usually sensible Mickey Kaus.

I find this claim so bizarre that it's almost degrading to refute it. As if a dishonest, improper tactic is made acceptable because it gets you what you want (at present). And as if major legislation that may last our lifetimes and effect hundreds of millions of citizens and costs trillions of dollars couldn't possibly be as significant as a federal judge who's one of hundreds, can't decide a case on his own, is constrained by law and by precedent, will eventually quit or die and is historically unpredictable enough that he may even vote the filibusterer's way.

I thought it was Laurence Tribe who supported the mythical idea of "balance" on the Supreme Court, but you may be right. Anyway, today's argument is different-- filibusters are wrong except when used to stop conservative judges.